Introduction

Canada prides itself and is widely seen around the world as being a country with substantial ethnic and racial diversity. Canada’s report to this Committee indicates that in the 2001 Census, Canadians reported more than 200 ethnic origins; four million people identified themselves as members of visible minority groups; and close to one million people indicated they were Aboriginal.¹

Over many decades, laws and policies at federal and provincial levels have sought to recognize and protect the rights of Canada’s diverse communities, through initiatives such as the Charter of Rights and Freedoms, statutory human rights codes, and the Canadian Multiculturalism Act. Yet racism continues to be a serious and pressing human rights concern in Canada.

The federal government’s recently adopted Action Plan Against Racism, for example, highlights a 2003 survey that indicates that 74% of Canadians believe there is still considerable racism in Canada, 46% of Aboriginal people living off-reserves report being a victim of racism or discrimination at least once in the two previous years, and 36% of visible minorities have experienced discrimination.²

In its 2002 submission to this Committee Amnesty International highlighted particular concerns with respect to racism experienced by Indigenous peoples, refugees and migrants, and communities which experience hate crimes.³ The Committee’s Concluding Observations underscored a number of concerns with respect to all of those communities, and laid out a range of important recommendations.⁴ This Update to Amnesty International’s 2002 submission highlights concerns in three areas that were highlighted by the Committee: Indigenous peoples, refugees and migrants, and racial profiling in the context of anti-terrorism laws.

At the outset Amnesty International highlights that Canada should demonstrate that it is prepared fully to comply with the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination by making a declaration under article 14, recognizing the jurisdiction of this Committee to receive individual petitions alleging breaches of the Convention. Canada has accepted all of the other individual petition procedures within the UN treaty system, namely the Human Rights Committee, the Committee against Torture and the Committee on the Elimination of Discrimination against Women. It is time to demonstrate that Canada’s commitment to ending racial discrimination is no less serious than any other human rights concern.

1. Indigenous Peoples (Articles 5, and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination)

The severe levels of racism and discrimination experienced by Indigenous peoples is a grave human rights concern rooted in laws, policies and social attitudes that go back not just years or decades, but centuries in Canada.

Amnesty International has highlighted that many human rights challenges faced by Indigenous peoples in Canada today, such as the very high levels of violence experienced by Indigenous women, are directly linked to this historic and continuing racism.⁵ Indigenous women face discrimination not only as women, but as Indigenous Peoples. The latter is not just another element of discrimination facing Indigenous women, but interacts with and changes the nature of the discrimination they face as women. Amnesty International’s 2004 Stolen Sisters report cites a 1996 government statistic indicating that Indigenous women between the ages of 25 and 44 with status under the federal Indian Act are five times more likely than other women of the same age to die as the result of violence.⁶ Alongside the Native Women’s Association of Canada, Amnesty International has called for a comprehensive national action plan to address the discrimination and violence faced by Indigenous women.

Amnesty International has also pointed out that Indigenous children face discrimination from the government of Canada.⁷ The federal government has acknowledged that Indigenous children are four to six times more likely than non-Indigenous children to be removed from their families and placed in the care of the state⁸while a recent independent study of three sample provinces found that First Nations children with status under the Indian Act were fifteen times more likely to be removed from their families than are other children.⁹ A key contributing factor is the significantly lower levels of funding for child and family social services on reserves.¹⁰ In 2000, the level of funding for Indigenous child and family social service on reserves was 22% lower than the level of funding provided to agencies serving predominantly non-Indigenous populations. Amnesty International has called on the Canadian government to end the disparity in funding for Indigenous child welfare services so that the best interests of Indigenous children are protected by effective preventative and early intervention programs.¹¹

In 2002, this Committee raised the concern that there had been unsatisfactory progress towards implementation of the recommendations from the 1996 Royal Commission on Aboriginal People. The Committee asked the government to provide detailed reporting to the Committee as to which of the Royal Commission’s recommendations had been responded to and why. Amnesty International is concerned that in 2007, more than a decade after the Royal Commission completed its important work, the bulk of the recommendations remains unimplemented and that the government has failed to develop a timetable or plan of action for doing so.¹² The Canadian government is failing in its obligations under international law to respect, protect and fulfil the human rights of Indigenous peoples.

The Royal Commission recognized that secure access to land and natural resources is essential for the fundamental rights of Indigenous individuals, families, communities and societies to be protected, including the right to be free from racism and discrimination. A wide range of substantial reforms to laws, policies and practices are long overdue, if the crucial relationship between Indigenous peoples and the land is to be appropriately recognized and safeguarded. These pressing concerns have been highlighted repeatedly in recent years in recommendations made by UN human rights treaty bodies and Special Rapporteurs.¹³ Despite these urgings, little progress has been made to resolve the vast majority of outstanding Indigenous land resource disputes in Canada. In the report of his 2004 mission to Canada, the U.N. Special Rapporteur on the situation of the human rights and fundamental freedoms of Indigenous people noted that the mechanisms and processes to resolve disputes over Indigenous lands and territories are slow, adversarial and generally inadequate. For instance, the UN human rights system has on several occasions called on Canada to ensure that government policies or practices do not result in extinguishment of rights and title to land and resources.

Concerns have also been frequently expressed by UN human rights bodies and experts and by Amnesty International about government decisions to allow economic exploitation of disputed lands without ensuring that basic rights of effected Indigenous communities will not be jeopardized. This Committee, in General Recommendation 23 on Indigenous Peoples called on states to ensure that “members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent.” The General Recommendation particularly calls upon states to “recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, when they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories.”¹⁴ The common practice of Canadian federal and provincial governments allowing economic development to go ahead in disputed situations without the free and informed consent of effected Indigenous communities is a central factor in the erosion of the land rights of Indigenous peoples across Canada.¹⁵

The Canadian government should address the longstanding racism and discrimination experienced by Indigenous peoples in Canada including by:

• developing a public and comprehensive Plan of Action for implementation of the outstanding recommendations of the 1996 Royal Commission on Aboriginal Peoples;

• collaborating with Indigenous peoples to establish effective remedies or approaches to the timely resolution of disputes over lands and territories. Such remedies or approaches should be guided by a clear commitment to uphold the human rights of Indigenous peoples, including recognizing, respecting and protecting a land and resource base adequate to ensuring the full realization of their rights;

• establishing clear, written policies, in consultation with Indigenous peoples to ensure that, consistent with emerging international standards for the protection of the human rights of Indigenous peoples, no resource extraction activities that could impact on their rights will be licensed on land to which they have title or use rights, or where title and use rights have not been legally resolved, unless the Indigenous peoples concerned give their free, prior and informed consent; and

• implementing the recommendation of the Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people that “it should be clearly established in the text and spirit of any agreement between an aboriginal people and a government in Canada, and supported by relevant legislation, that no matter what is negotiated, the inherent and constitutional rights of aboriginal peoples are inalienable and cannot be relinquished, ceded or released, and that aboriginal peoples should not be requested to agree to such measures in whatever form or wording.”

The Canadian government should act immediately to address the longstanding racism and discrimination experienced by Indigenous women and children in Canada including by:

• ensuring that accurate data on violent crimes against Indigenous women and girls is consistently collected and made publicly available;

• establishing a coordinated plan of action to address violence against Indigenous women, including social and economic factors that place Indigenous women in situations of heightened risk and the role of racism in perpetuating violence;

• ensuring adequate, sustained, multi-year funding from all levels of government, for the provision of culturally appropriate health and social services for Indigenous persons living on and off reserves, including provision of shelters and counselling for women and girls escaping violence; and

• ending the disparity in funding for Indigenous child and family services and ensuring that the best interests of Indigenous children are protected by effective preventative and early intervention programs.

Despite Canada’s long and generous history of receiving refugees and migrants, there are many human rights shortcomings in the laws and policies governing migration to and the grant of refugee status in Canada which discriminate against refugees and other migrants. This Committee has in General Comment 30, clarified the application of the Convention to non-citizens. The Committee has also previously called on the government of Canada to give “greater attention to the possible discriminatory effect of Canadian immigration policies.”¹⁶

Numerous human rights treaty bodies and Special Rapporteurs have highlighted a range of human rights problems experienced by refugees and migrants in Canada.¹⁷ Among the concerns noted are many that Amnesty International has repeatedly raised with the Canadian government. These concerns, which are rooted in or expose refugees and migrants to racial discrimination, include:

• the immigration security certificate procedure, which applies only to non-citizens and within that category discriminatorily requires mandatory detention in cases of individuals who are not permanent residents of Canada. All individuals who are detained pursuant to security certificates are dealt with in a manner that falls short of international fair trial norms.

• the lack of a full appeal on the merits for refugee claimants who are refused status, despite provisions in the Immigration and Refugee Protection Act, which was adopted by parliament in 2001, requiring that such an appeal process be established;

• provisions which allow for the deportation from Canada of individuals alleged to be security risks to countries where there is a serious risk of torture;

• concerns that individuals without any lawful immigration status in Canada face discrimination and are vulnerable to abuse and exploitation in a number of ways, including with respect to their rights at work and domestic violence;

• varying levels and eligibility for social assistance across Canada, from province to province, tied to immigration status, such that the differential treatment between citizens and non-citizens itself differs across the country;

• the plight of some temporary migrant workers, such as those admitted to Canada under the Seasonal Agricultural Workers Program, who are denied equal protection under labour standards legislation and may be denied access to employment insurance despite being required to make contributions;

• the live-in requirement associated with the domestic caregiver program, which ties immigrant status to a requirement that caregivers live in their employer’s home and increases the likelihood of exploitation and abuse; and

• Canada’s continuing failure to ratify the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

The Canadian government should act immediately to address the racism and discrimination experienced by refugee and migrants in Canada including by:

• ensuring that detention decisions in all immigration matters, including security cases, are justified in each individual case as a necessary and proportionate measure that conforms with international law and not taken discriminatorily on the basis of immigration status, and should be subject to periodic judicial review;

• reforming the immigration security certificate process to ensure that it complies fully with international human rights requirements governing fair trials;

• establishing the Refugee Appeal Division of the Immigration and Refugee Board, as provided under the provisions of the 2001 Immigration and Refugee Protection Act;

• carrying out a review of legislation and practice to identify and remedy instances in which internationally protected rights, including the right not to be arbitrarily detained as well as such economic, social and cultural rights as education, health care, access to employment and adequate housing, may be denied or not equally guaranteed to individuals on the basis of discrimination because of their immigrant or citizenship status in Canada;

• ensuring that farm workers and other migrant workers are fully covered and have equal protection under minimum labour standards, including the right to form trade unions and bargain collectively, and have equal access to employment insurance;¹⁸

• reforming the Live-in Caregiver program, including by reconsidering the live-in requirement; and

• ratifying the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

This Committee last reviewed Canada’s performance under the Convention in August 2002, almost one year after the September 11^th terrorist attacks in the United States and the widespread reforms to national security laws and practices which followed in many countries, including Canada. In Canada, as elsewhere, many of those reforms have led to the adoption of measures which directly violate or undermine internationally protected human rights. This has included serious concerns about religious, ethnic and racial discrimination, arising from increased focus on Muslim, Arab, South Asian and other communities. In 2002, this Committee called on Canada to “ensure that the application of the Anti-terrorism Act does not lead to negative consequences for ethnic and religious groups, migrants, asylum-seekers and refugees, in particular as a result of racial profiling.”¹⁹

In the subsequent years, many groups and individuals have pointed to instances of racial and religious profiling in the context of Canadian national security practices.²⁰ The high profile case of Maher Arar, a Muslim Canadian citizen of Syrian origin, who was detained in the United States and subjected to extraordinary rendition to Syria, where he was detained without charge or trial for one year and subjected to severe torture has underscored the serious nature of these concerns. A 2 ½ year public inquiry into his case issued two reports in the fall of 2006, vindicating Mr. Arar and highlighting the wrongdoing, shortcomings and mistakes on the part of Canadian law enforcement and security agencies which were the root of his case. Notably, in the first of the two reports, Commissioner Dennis O’Connor raises concerns with respect to racial, religious or ethnic profiling.

Although this may change in the future, anti-terrorism investigations at present focus largely on members of the Muslim and Arab communities. There is therefore an increased risk of racial, religious or ethnic profiling, in the sense that the race, religion or ethnicity of individuals may expose them to investigation. Profiling in this sense would be at odds with the need for equal application of the law without discrimination and with Canada’s embrace of multiculturalism. Profiling that relies on stereotypes is also contrary to the need discussed above for relevant, accurate and precise information in national security investigations. Profiling based on race, religion or ethnicity is the antithesis of good policing or security intelligence work.²¹

The Commissioner then recommends that:

• Canadian agencies conducting national security investigations, including CSIS [the Canadian Security and Intelligence Service], the RCMP [Royal Canadian Mounted Police], and the CBSA [Canadian Border Services Agency], should have clear written policies stating that such investigations must not be based on racial, religious or ethnic profiling.²²

• Canadian agencies involved in anti-terrorism investigations, particularly the RCMP, CSIS and the CBSA, should continue and expand on the training given to members and staff on issues of racial, religious and ethnic profiling and on interaction with Canada’s Muslim and Arab communities.²³

The concerns that have arisen with respect to Maher Arar are not isolated. In December 2006 the government announced that there will be a further inquiry into the cases of three other Canadian citizens detained and tortured abroad in circumstances where the actions of Canadian officials may have contributed to the human rights violations experienced by these three individuals, all Muslim men of Arab origin.²⁴

While the government has in general indicated that it accepts the recommendations flowing from the Arar Commission of Inquiry, specifics as to implementation of the majority of the recommendations, including these dealing with profiling, have yet to be provided.

Amnesty International has previously urged that the definition of terrorist activities included in the 2001 Anti-Terrorism Act be amended so as to reduce the possibility of racial, religious or ethnic profiling. Currently the definition includes a requirement that the actions of the accused be motivated by one of religious, political or ideological motivation. Amnesty International has called on the government to remove that requirement from the definition out of concern that it encourages investigators to target individuals precisely because of their religion or political views, and inevitably then also their race or ethnicity.²⁵

A recent Ontario Superior Court of Justice decision, R v Khawaja²⁶has struck down the motivation section of the definition. However, there has not yet been any judgment from a higher level of court regarding this issue. The legislatively mandated review of the Anti-Terrorism Act, which commenced in December 2004 is expected to make recommendations regarding the definition, but has not yet completed its work.

Amnesty International has also raised concerns with the Canadian government about issues related to so-called “no fly” lists, both a proposed Canadian list and the impact of U.S.-administered lists on Canadians.²⁷ An untold number of individuals, predominantly of Arab, South Asian or Muslim origin, have already been singled out, questioned and often barred from boarding flights in Canadian airports on the basis of such lists. Many have reported their cases to Amnesty International. This pattern will almost certainly increase with the expected introduction of Identity Screening Regulations by the federal Department of Transport in March 2007 as part of its “Passenger Protect” program. Risk assessments for that program will be carried out by the RCMP and by CSIS. The Arar Inquiry has highlighted that both of those agencies have, in the past, contributed to the arbitrary targeting of individuals.

Amnesty International is concerned that “no fly” lists are secretive and may frequently be based on erroneous information. As well, the reconsideration or appeal processes under which an individual can seek to have his or her name removed from a list are often difficult to access or understand, particularly given that much of the information on which the listing is based is likely to be withheld from the person concerned.

With respect to the new Identity Screening Regulations, there is no substantive appeal or review process. An individual can make a written request to not be listed, in effect a reconsideration of the decision to list the person. In the course of that process they would not at all be told why they have been listed. These is no hearing or actual opportunity to ask questions about why they are on the list. It is possible to provide additional written material, but without any indication as to why they were listed in the first place, there is no real opportunity to mount an effective defence. The “external advisor” who reviews the complaint then makes a report to the Office of Reconsideration who makes a recommendation in turn to the Minister.

The Canadian government should act immediately to address the racism and discrimination that arises in the context of national security investigations including by:

• implementing the recommendations regarding racial, religious and ethnic profiling made by the Commission of Inquiry into the Action of Canadian Officials in Relation to Maher Arar;

• removing the religious, political or ideological motivation requirement in the definition of terrorist activities in the Anti-Terrorism Act;

• ensuring that any Canadian established “no-fly” list, such as the anticipated Identity Screening Regulations, does not operate in a discriminatory manner and includes an appeal or review process that is accessible and fair; and

• ensuring that there is transparency regarding the impact of U.S. or other foreign no-fly lists on passengers travelling on flights originating or terminating in Canada and that safeguards are in place to safeguard against such lists operating in a discriminatory manner.